Electronic communication can be monitored by the employer

Submitted by Thomas Baudewijn on January 21, 2016
Texting

Last week the European Court of Human Rights (ECHR) rendered a judgment that has gotten quite some attention in mainstream media. The Court decided that an employer can indeed under certain circumstances monitor the electronic communications of its employees. This can however hardly be considered as a surprise.

It’s clear to everyone that as a matter of principle the employer needs to respect the privacy of its employees. Nonetheless there is more in life than privacy alone. In Belgium an employer can monitor the electronic communication of an employee when this has been permitted by the employee or if the employer can invoke its own interest.

Additionaly, the employer can turn to Collective Labor Agreement number 82 that specifies how the principles of finality, proportionality and transparency have to be dealt with when the employer decides to monitor. Therefore, the question isn’t whether it is allowed or not, but under which circumstances it is legal to monitor.

The ECHR was asked to examine a Romanian case. A certain Bogdan Mihai Bărbulescu had registered a Yahoo Messenger account at the request of his boss so that he would be able to chat with costumers. When the employer had monitored this account and had revealed that it was also being used for personal purposes Bărbulescu was dismissed. Internal regulations did not allow the use of company resources for personal use.

According to Bărbulescu this was a violation of article 8 of the European Convention on Human Rights:

Everyone has the right to respect for his private and family life, his home and his correspondence (…)

That’s however not the opinion of the ECHR. It is not unreasonable of an employer to want to supervise his employees to see it they are indeed working during the working hours and it was not to be expected to find personal correspondence in the Yahoo account. Moreover, during the proceedings no details about the content of the personal messages was used and it was only determined that personal messages were send during working hours.

This lead the ECHR to conclude that a fair balance was struck between the protection of the personal life of the employee and the interests of the employer.

Therefore this judgment cannot be considered as problematic. It does not allow uncontrolled supervision of electronic communications by the employer. If an employee uses a personal account to send personal messages and this does not affect work, the employer will have no legal ground to start monitoring.

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